Gregor Hagedorn, Daniel Mietchen, Robert A. Morris, Donat Agosti, Lyubomir Penev, Walter G. Berendsohn, and Donald Hobern

“ Taxation status is typically assessed by a complex set of rules, governed by law, but in detail often defined by individual taxation authorities. Despite a long case history and detailed assessment rules, it is possible that an organization achieves non-profit status in one taxation district, and fails to do so in another. Assessing the non-commercial intent of individual actions in court may be vastly more complicated. ”

“ Copyright typically lasts 50 to 70 years after the death of the last contributor of a work. Under the standard term in the European Union (“life plus 70 years”) even very old works may require individual negotiations with the rights owners before they can be made accessible digitally or parts of them re-used in a new context. If contractual arrangements between contributors of a work and the death year of at least one potential rights owner are unknown, only works before perhaps 1871 can reasonably be assumed to be in the public domain. ”

“ To some extent, non-profit organizations compete with each other for donations and funds that the members of the public are willing to spend on membership fees. If a non-profit nature conservation organization uses an NC-licensed image in an advertisement brochure and the paid membership increases, it could be argued – similarly to the case of the calendar – that this use of the licensed work was primarily intended and directed toward commercial advantage.
In the case of for-profit companies, a commercial advantage can be assumed to be the primary goal in the majority of cases. ”

“ Furthermore, open licenses will help small companies or local non-profit initiatives more than big companies. Large companies can afford to buy works and can bear high management overhead, the cost of legal advice, or the risk of litigation much better than small organizations and initiatives.
Each creator of a work considering licensing options is therefore encouraged to balance the potentially lost income against the increased benefit to society. Within our own field of biodiversity, we hope that more organizations and publishers encourage their contributors to avoid NC licenses. ”

“ A choice of licensing options should be given and the NC license should be present in ways that avoid raising false assumptions. “All Commercial Rights Reserved, most use by for-profit as well as non-profit organizations prohibited” is a better representation of the effect of the license.
Open content licenses such as CC BY (used by many Open Access publishers) or CC BY-SA (used, e.g., by Wikipedia) will enable a much wider re-use of a contribution and increase the efficiency of non-profit organizations in informing and educating others about biodiversity and nature conservation. ”

“ Individuals or organizations desiring to grant Open Access and defined community re-use of their creative works can do so by creating their own individual terms-of-use. For the copyright owner and license giver (licensor) , this may often appear to be the simplest and safest way to proceed. For re-users (licensees) , however, legal advice may be required to assess whether individual terms-of-use permit their intended use in their own jurisdiction. Not doing so carries the risk of unwitting copyright violations that may result in legal action. ”

“ Even more difficult is the situation for drawings, photographs or diagrams. Documentary photographs or drawings are widely granted full copyright status even if they depict entirely factual information that might not itself be copyrightable. In the case of biodiversity knowledge, where much data and knowledge is expressed in these documentary forms, this can be a substantial barrier to knowledge dissemination. Finally, copyright on diagrams may severely diminish the ability of teachers and educators to disseminate knowledge efficiently. ”

“ While some interpretations plausibly argue that in public perception non-commercial and non-profit are widely seen as closely related, a public misconception is likely to be irrelevant in a court case. ”

“ Independently, a clarification of the license terms, stating that uses of NC-licensed works by organizations certified as charities or non-profit organizations for the purpose of taxation in their country of residence are always appropriate, might help to reduce the risk of using NC-licensed works. Such a clarification should not change the NC license by making the use of NC licensed words dependent on the status of the user. It should only clarify that certification by taxation authorities is a sufficient test to evaluate primary versus secondary intentions. ”

“ Risk management will require careful documentation of intent and actions while running a project involving the re-use of NC licenses.
In conclusion, the licensing concepts “commercial advantages”, “primarily”, and “intent” are difficult to define and assess, resulting in a significant risk of litigation to private persons as well as organizations that use works supplied under an NC license. Being an educational or non-profit organization does reduce the likelihood of litigation in terms of frequency (because many licensors accept such use) . ”

“ Within biodiversity, the Encyclopedia of Life (EoL, http://eol.org) uses complex combinations of CC BY-NC-SA and CC BY-SA material. However, EoL has license agreements with its contributors allowing for use on EoL independent of the Creative Commons licenses. A more relevant example may thus be the complex ways in which Wikipedia occasionally combines text under CC BY-SA with images under various open content licenses share-alike-licenses, e.g., some images being licensed exclusively under the GNU Free Documentation License. ”

“ Any natural or legal person or organization, including commercial enterprises, may exercise licensed rights over an NC-licensed work. The ability to re-use, copy, or derive from a work depends on the context and goal of the activity, not on the type of legal entity exercising the rights.
2. Charging money for the work as a means to obtain a profit is clearly prohibited; there will be little doubt that this has been the primary intent when exercising the rights granted by an NC-license. ”

“ Fortunately, many individuals and organizations in the scientific field, while legally entitled to complete and century-long copyright control, see advantages in less restrictive terms-of-use. In contrast to cultural works, the primary intent of scientific works is most often the dissemination of knowledge. ”

“ For singular cultural works such as poems, novels, paintings, or musical compositions, and where a reproduction concerns major parts of the work, the balance offered by copyright law between the rights of creators and the rights of the public for creativity and innovation is widely considered reasonable. ”

“ Most non-profit organizations or charities engage in commercial activities like buying and selling goods and services. They are potential buyers of copyrighted works; allowing them to re-use a work free of cost potentially diminishes the commercial revenues of the copyright owner. Copyright owners licensing their works under an NC license might well intend to apply a strict interpretation of non-commercial, so as to not lose potential profits from this market sector. ”

“ Creative Commons realizes that no single license is adequate for all purposes and provides a set of licenses to cover a wide range of use cases.
Logo of the CC Zero or CC0 Public Domain Dedication License – “No Rights Reserved” (CC BY, Creative Commons) A special case is the “no rights reserved” or “rights-release” license, CC0 or CCZero. Not all jurisdictions have the concept of a public domain and in some jurisdictions specific rights cannot be released. CC0, as a license, describes a degree of freedom that is as close as possible to the concept of a public domain. ”

“ However, a rich case history is available in most jurisdictions for the analogous case of assessing the non-profit or charity status of organizations for taxation purposes. Similarly to the CC NC licenses, such assessment goes beyond a simple calculation of profits. A non-profit organization may make losses in one year and profits in another without threatening its non-profit status, and a for-profit organization making losses several years in a row cannot simply claim a “non-profit” status for taxation purposes. ”

“ Together with its world-wide affiliate organizations and partners, it provides standardized and scrutinized license texts, translation into languages and adaptations for various jurisdictions (presently over 50 adaptations are provided) . Creative Commons is never a party in the contract of such a license (other than in connection with materials for which it holds copyright itself) . ”

“ Given such changes, we hope that the preference for NC-licensing by publicly funded organization who can afford to provide materials into an Open Content Commons is waning. We believe NC licenses should not be used for the dissemination of results from publicly-funded organizations or research projects. The public rightfully expects a return for its investments in the form of re-usable digital content. ”

“ Importantly, the NC license does not refer to the status of potential users at all; focusing solely on the manner in which a work is used. Both for-profit and non-profit organizations may use NC licenses. However, non-profit organizations probably need to rely on factors other than their status to decide whether they may use NC-licensed works. ”

“ Icon of the Attribution (= BY) condition (CC BY, Creative Commons) All current CC licenses (except CC0) contain the “Attribution” condition (abbreviated “BY”) , requiring appropriate attribution of the creators of a work. In the case of derived works, this condition also requires clear statements or methods to enable the user to understand the kind of changes made during a derivation. The Attribution condition is similar to the scientific community standard that all information sources must be appropriately cited. ”

“ The CC Attribution-NC-Share-Alike license is incompatible with the CC Attribution-Share-Alike license. NC licenses therefore cannot be used on major collaboration platforms like Wikipedia or Wikimedia Commons (Möller 2007; Wikimedia Commons 2009) .
4. The decision whether an activity is “primary” or “secondary” will be difficult to argue and decide in courts. For example, fundraising will primarily be directed towards monetary gain. This, however, may ultimately be intended to hire a person to work in nature conservation. ”

“ For example, collaboration needs and cost-compensation schemes for the provision of content on an Internet platform may differ from needs and schemes for the provision of works in print, on offline media like CDs or as smartphone applications. ”

“ In our experience, the proportion of contributions which cannot be reached, have lost interest, never meant to market their contribution (having misunderstood the purpose of NC) , or are unwilling to consent is relatively high. ”

“ PMC Open Access Subset. http://www.ncbi.nlm.nih.gov/pmc/tools/openftlist/ – archived at webcitation.org/6294snvLb van Spronsen E, Martellos S, Seijts D, Schalk P, Nimis PL (2010) Modifiable digital identification keys. In: Nimis PL, Vignes Lebbe R (eds) Tools for identifying biodiversity: Progress and problems. ISBN 978-88-8303-295-0, Trieste, 127-131. http://www.openstarts.units.it/dspace/bitstream/10077/3762/1/van%20Sprosen%20et%20al,%20bioidentify.pdf – archived at webcitation.org/62fUVPw4x Wellcome Trust (2003-2011) Open access policy. ”